Complainant

Respondent

Parties

Vivian  Ogunkoro

J.J. Kavanagh & Sons Limited

Representatives

Richard Awosika

Dorothy Donovan B.L

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00063425-001

04/05/2024

The complaint relates to events that occurred on Sunday 5th November 2023 when the complainant, her daughter and son used the respondent bus service from Dublin Airport to Waterford. The complainant’s daughter was six-years old and her infant son was one-year old.

The complaint is that the respondent discriminated against the complainant by reason of disability (her minor daughter) and the complainant herself on race grounds. There is a further complaint of harassment on race grounds. The events concern the complainant’s unsuccessful attempt to travel on the 11am service (Bus 1 Incident) and how she was treated when she boarded the bus for the 12.30pm service (Bus 2 Incident).

Bus 1 incident is a complaint of discrimination on grounds of disability.

Bus 2 incident is a complaint of discrimination on the grounds of race along with a complaint of harassment.

On 6th November 2023, the day after the incidents, the complainant emailed the respondent with details of her complaints.

On 2nd January 2024, the complainant submitted an ES.1 Notification Form to the respondent on behalf of herself, her daughter (minor) and her son (minor).

On 11th January 2024, the respondent replied to the ES.2 Notification Form.

As the complaints were not resolved, the complainant submitted a complaint to the WRC in May 2024.

The respondent disputes all claims.  

Summary of Ms Ogunkoro’s Evidence

Bus 1 Incident

The complainant said she was very early for the 11am bus and was waiting from around 9.30am. She said her daughter has challenges through her disability. When the bus arrived, the bus driver told her he was taking prebookings first. The complainant said she had a card for free transport and that once the driver had finished the prebookings he then proceeded to take cash/card payments. She said that two people then arrived with an advance booking for the later 12.30pm service. She could see this as they had a print-out of the booking. She said these were allowed board the bus ahead of her and her family. She said that she informed the bus driver that she only required two seats as her infant son would be on her lap. The bus driver informed her that there was only one seat left. She said that a lady with a head scarf was the last to board the bus to occupy the last seat. She said that as she had already loaded her luggage and pram she then unloaded these before the bus departed. She said that the events took place over a fifteen minute period from when the bus arrived  to when it departed.

Bus 2 Incident

When the 12.30pm bus arrived she boarded and showed her free travel card. The bus driver clarified that the travel pass only entitled her to travel free and she would have to pay for her daughter. She said to the driver that the reason she had the travel card was due to her daughter’s challenges and she pointed to the lanyard around her daughters neck as awareness of her needs. She was not aware of having to pay for her daughter and she got off the bus. At this stage she had asked a friend to send money to her phone. She then boarded the bus again to pay. She told the bus driver that she was staying on the bus as she did not want a repeat of what occurred earlier when she could not travel. She said the bus driver was verbally abusive to her at this stage. She paid the bus fare for her daughter and was allowed to travel. She said it was the worst experience she has ever had in the way she was treated. She rang the company and explained what happened. The next day she emailed the company with her complaint. As she felt the company were not taking the matter seriously, she sent the ES.1 Form. As she was not satisfied with the response received, she made a complaint to the WRC.

Under cross-examination from the respondent representative, the complainant confirmed her daughter has a disability as she is slightly autistic. She was asked why she did not prebook as she would have been guaranteed seats. She replied that she was not aware of prebookings as it was her first time to use the service. She was taken through the print-out of those who boarded the bus which included free travel cards who had been able to board the 11am bus along with cash/card customers.

She was asked about her free travel card as it did not include free travel for her daughter. It was put to her that the driver of bus 2 was entitled to seek payment. It was put to her that the bus driver had acted within the procedures as he was entitled to seek payment for her daughter. Although the alleged racist comments were not detailed in evidence she was asked what the comments were. The complainant clarified that the comments were “because you are a nuisance”. Without prejudice to whether the comments were made, it was put to her that they were not racist comments. It was put to her that CCTV was available for the bus 2 incident (she had been invited previously to view this footage and she did not take this up). The respondent representative confirmed that the CCTV for bus 2 was also available to the Adjudication Officer.

Closing Submission

The complainant’s representative outlined the inconsistencies in the treatment of the complainant and particularly the way in which she was asked to step aside whilst attempting to board bus 1. The two passengers who booked the later bus were permitted to travel ahead of the complainant which was not in line with the procedures outlined in the respondent evidence.

Summary of Mr Klesczc Evidence

Mr Klesczc described his role within the company as Depot/Transport Manager. He said he was from Poland and that drivers are employed of various nationalities. He gave the nationalities of both drivers and confirmed that they had good employment records.

He gave evidence of the employment contracts and staff handbook which outlined how customers should be treated. He said that himself and other managers were responsible for training and making drivers aware of their responsibilities under the equality legislation. He said that managers received training which is relayed to the drivers. He estimated that the skill set involved 50% driving and 50% customer service.

He outlined the payment methods with a current trend of prebookings. He said that once prebookings are boarded then everyone else whether cash/card payments/free travel cards are treated equally. He said there were 51 seats on bus 1 and 40 were prebooked.

He gave evidence that he viewed the CCTV of bus 2 and he was satisfied that the driver had followed company procedures. He said the company treated these matters seriously and if a driver was abusive to passengers then there could be disciplinary actions. He said he had investigated the matter and discussed it with the drivers. He said the CCTV was not available for bus 1 as footage is normally erased after two weeks. He said the company was more focussed on bus 2 as it involved a complaint of verbal abuse by the driver.

He was cross-examined by the complainant’s representative on the difference between bus 1 and bus 2 in that the driver asked the complainant to stand aside when he took cash/card payments. He replied by referring to the print-out of passengers who boarded which included free travel card holders. He confirmed that prebookings for the later service did not have priority over customers waiting for the earlier service.

Summary of Ms Grace’s Evidence

Ms Grace described her role as administrator along with an involvement in staff training. This is to ensure that staff and passengers are treated appropriately under the equality legislation. She said when the complaint was received that Mr Klesczc was dealing with it. She was only involved a week later. She did not know why the CCTV for bus 1 was not retained.

Closing Submission

The respondent representative denies that any discriminatory treatment or harassment occurred. It was submitted that the onus was on the complainant to establish a prima facie case and there was insufficient evidence that she had been discriminated against.

Without prejudice to this, the respondent relies on section 42(2) of the Act in that training of managers took place at regular intervals. It was submitted that training sessions took place in July 2019, October 2022 and October 2023. It was also submitted that a meeting was held on 11th November 2023 after the complaint was made.

The complainant and Adjudication Officer were invited to view the CCTV of bus 2.  

Bus 1 Incident

The Law

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g)  that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

20.— In this Part, unless the context otherwise requires—

‘complainant’ means—

(a) a person referred to in section 21(1), or

(b) where such a person is unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part, his or her parent, guardian or other person acting in place of a parent;

Section 38A (1) provides-

" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

Therefore, the complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

Findings on Disability Complaint

Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease, or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

There was testimony given from the complainant that her daughter is slightly autistic. The complainant said one of the reason she has a free travel card is due to her daughter’s disability. Testimony was given that her daughter had a lanyard around her neck, as awareness of her disability when travelling through the airport. From the direct evidence of the complainant which was not contested by the respondent, I find the complainant’s daughter has a disability for the purposes of the Act. As the complainant is acting on her daughter’s behalf on the disability complaint, as per section 20 of the Act, I will refer to the complainant heretofore as complainant (minor).

Prima Facie Case

The complainant gave testimony of the bus 1 incident which is somewhat consistent with the driver internal investigation notes. Despite being present at 9.30am for a bus at 11am, the complainant and family did not get to travel on bus 1. Outside of the prebooked seats there were 11 other seats for cash/card/free travel customers. The complainant gave evidence that she was requested by the driver to stand aside while he took prebookings. She gave evidence that she witnessed two later bookings being facilitated with seats on the bus. The complainant also gave evidence that she showed her free travel card to the driver when there was a discussion about the last seat.

Driver Awareness of Complainant (minor) Disability?

There was no CCTV made available for bus 1 and the driver was not called as a witness for the respondent. If the driver operated similarly to the CCTV of bus 2, he would have come outside of the bus to scan prebookings. He then would have taken cash/card/free travel cards outside, at the stairs or back on the bus. The incident took place over a 15 minute period.

The notes of the internal investigation meeting record as follows-

Q, This lady says her daughter is special needs, can you tell me about this?

A, I do not understand special needs, I did not see anything wrong with the baby or other child. I did not look much.

On whether the later booking got priority over the complainant’s family it records-

A, I did not know that this was the wrong thing to do. I’m sorry.

He was then asked-

Q, Did this lady mention a free pass.

A, No, but I did see when we talked about the one seat was left that she had a pass in her hand. I never asked her to pay.

Based on the testimony at the hearing and the subsequent documentation of the internal  investigation, two bookings for the later bus got priority ahead of the complainant (minor). The discussion over the last seat and the travel pass sighted in her hand was an opportunity to review whether customer priority was in accordance with procedures. Over the previous 15 minutes, the driver would have been off the bus with sight of the complainant’s family. On the evidence, there were two interactions with the complainant. The first when she was asked to step aside for prebookings, then the later discussion about the last seat. Between these two interactions, the driver was in a position to see the lanyard and/or the complainants (minor) behaviour.

The Labour Court in St Margarets Recycling & Transfer Centre Limited v. Smoketunowioz (EDA 1822) considered the issue of whether an employer could have been on actual or constructive notice of a disability.

‘Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. InSomers v W[1979] IR 94 Henchy J aptly described the concept as follows: -When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.’

On reviewing the testimony and documentary evidence, I am satisfied there was actual or constructive notice of the complainant’s (minor) disability.

For the reasons outlined, I find a prima facie case of discrimination on disability has been made out by the complainant (minor). It is now for the respondent to prove facts which demonstrate or indicate to the contrary.

Respondent Case

There was no direct testimony from the driver as he was not called as a witness. The internal investigation notes submitted after the hearing did not contradict the complainant’s evidence that two passengers were prioritised ahead of her family. The investigation notes are unclear whether the driver took sufficient steps to be aware of the complainant’s (minor) disability. The two interactions, the daughter’s lanyard and behaviour, along with the free travel card sighted in her mother’s hand indicates that the driver was on actual or constructive notice. There was insufficient evidence from the respondent to prove to the contrary. The fact that several managers had the opportunity although did not retain the CCTV evidence is not helpful to rebut the complaint made.

I find that the respondents have not proved facts to counter the claim of discrimination.

Section 42 (3) Defence

This section allows the respondent to defend a claim based on the steps taken as were reasonably practical to prevent the employee, from doing an act or acts of that description during the course of employment.

The testimony given by the respondent witnesses was that training had taken place with managers and this in turn was communicated to drivers. One of the documents relied upon in the respondent submission is entitled “Employment Legislation” which lists the legislation relevant to managers who manage staff. Under the Equal Status Act 2000 it states-

‘Ensure that all employees, particularly bus drivers, are aware of the need to treat passengers in a non-discriminatory and polite manner and to respect their dignity. Disabled passengers are to be given extra attention and attention as needed and appropriate.’

I am not convinced that this training/communication was delivered to all drivers given what transpired in this case. The internal investigation established that the driver did not look around much before allowing passengers to board.

The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is set out at Section 4(1) of the Equal Status Act 2000-

(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

Given the responsibilities of the respondent under the Act, it was remiss of the driver not to pay more attention to the passengers about to board.

It was submitted that managers were trained on equality issues. However, this was not reflected in the actions of management once the complaint was made. CCTC evidence of bus 1 was not retained and the learning points from a disability perspective were not recognised. The manager who conducted the investigation with the driver wrote on 7th November 2023 as follows-

‘It seems to me that Mr X story sounds plausible- he thought the two people who got on second after the pre-booked were also prebooked and he did not think he should put them off.

I considered that Ms Vivian was tired, she had two children with her, and she had been there for a while but I do not believe that driver acted with any malice and that the whole thing was just unfortunate.

I considered that the next bus was just one hour and a half later and but for the fact that Ms Vivian may have been there since 9.30 this might not have been too bad.

I considered that this is the first complaint against Mr X who I find to be very polite.

My decision is not to progress the matter to the next stage but to advise Mr X that we do not treat free travel pass passengers any different than those paying.’

After the complaints, the response indicates that managers may not be fully aware of their responsibilities to customers with disabilities, despite the evidence that some training of manager’s took place.

There was insufficient evidence to demonstrate that adequate training or systems for passengers with disabilities are in place. After the incident, there was no genuine engagement with the complainant as everything was denied. The respondent was aware from an early stage that customers were prioritised outside of company policy and the driver was sorry for this. Even the internal investigation surmised that the ‘whole thing was unfortunate’. Yet, none of this was relayed to the complainant. Indeed, the internal investigation documents were only submitted after the hearing when requested.

Conclusion

A presumption of discrimination on disability grounds was sufficiently raised by the complainant (minor) and I found her evidence to be consistent and convincing. I find that the respondent has not provided sufficient evidence to prove to the contrary.      

For the reasons set out above, I decide that the complainant (minor) was discriminated against on the grounds of disability contrary to the Act. 

Redress

In terms of redress, Section 27(1) of the Act provides that:

…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

In making an order for redress, I need to decide on an effective remedy. I have considered the complainant’s experience and the fact that all complaints were fully denied by the respondent. At the hearing, the policy of not allowing later prebooked passengers to board ahead of cash/card/free travel customers was clarified. The investigation with the driver few days later confirmed that this likely occurred. This was not relayed to the complainant who rightly concluded that they were not taking these matters seriously enough.

The effects on the complainant (minor) were significant on the day of the incident and afterwards with no genuine engagement. This resulted in the complaint becoming more protracted than was necessary. In considering of these factors, I order that the respondent pay the complainant compensation of €6,000 for the effects of the prohibited conduct. 

I also order that the respondent review their systems and procedures specifically having regard to their responsibilities to passengers with disabilities.

Bus 2 Incident

The Law

Discrimination

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

The discriminatory ground relied on by the complainant is ‘race’.

Harrassment

(5) ( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the

discriminatory grounds, and

(ii) …

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and

creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist

of acts, requests, spoken words, gestures or the production, display or circulation of written

words, pictures or other material.

Findings

Discrimination on Race Grounds

The complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

The facts around this incident are clear. The complainant had not used the bus service previously and was unaware that her free travel card did not entitle her daughter to free travel. In accordance with procedures, the driver was entitled to query this with the complainant and request a payment. The complainant then left the bus and requested a transfer of money from a friend. She then boarded the bus again and insisted on making the payment and not leaving the bus. I have the benefit of all the testimony, the boarding records and the CCTV footage. Although this is a separate complaint, the events leading up to this incident are relevant. The complainant and her family had not been allowed travel on the earlier service. She then only became aware of the requirement to pay for her daughter when she boarded the later bus. The driver was obviously not aware of her previous experience. It is evident that the driver did call the complainant a nuisance. Although this is certainly not appropriate, this remark was not discriminatory as per the Act in that it was not made or targeted at the complainant on account of her race. From the CCTV footage it is also clear that the driver remained calm and did not appear to raise his voice.

For the reasons outlined, I decide the complainant was not discriminated against due to her race, as per the Act.

I decide that the complainant was not discriminated against on race grounds.

Harassment on Race Ground

Although it has been established there were inappropriate words spoken which violated the dignity of the complainant, I am not satisfied on the evidence that these words related to the complainant’s race. As outlined, there was a lead-up to this incident and the bus driver may not have behaved as he did if he was aware of the previous incident. The complainant’s lack of awareness of having to pay for her daughter was also a contributory factor to the incident. The words spoken were insulting and were inappropriate remarks although I find no evidence that they were targeted at the complainant due to her race.

For the reasons outlined, I decide that the complainant was not harassed on the grounds of her race.

Disability Complaint

I decide that the complainant’s (minor) was discriminated against on the grounds of disability.

I order that the respondent pays the complainant (minor) compensation of €6,000 for the effects of the prohibited conduct. 

I also order that the respondent review their systems and procedures specifically having regard to their responsibilities to passengers with disabilities.

Discrimination Complaint on Race Ground

I find the complaint is not well founded. I decide the complainant was not discriminated against on race grounds.

Harassment on Race Ground

I find the complainant is not well founded. I decide the complainant was not harassed on the grounds of her race.

Equal status, disability, race